Clarkson v The Queen
[2011] VSCA 157
•3 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0935
| PHILLIP WAYNE CLARKSON | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2009 0996
| EJA | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | MAXWELL ACJ, NETTLE, NEAVE, REDLICH and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 & 25 October and 4 November 2010 |
| DATE OF ORDERS | 13 December 2010 |
| DATE OF JUDGMENT | 3 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 157 |
| JUDGMENT APPEALED FROM | R v Clarkson (Unreported, County Court of Victoria, Judge Campton, 2 December 2008); R v [EJA] (Unreported, County Court of Victoria, Judge Cotterell, 18 December 2009) |
---
CRIMINAL LAW – Sentencing – General principles – Sexual offences against children under 16 – Consent of victim no defence – Presumption of harm to child victim – Incapacity to give meaningful consent – Whether ostensible consent of child reduces gravity of offence or culpability of offender – Consent as such never mitigating – Sentencing court to examine circumstances in which consent given – Consent as reflecting relationship between offender and victim – Relevance of age difference, power imbalance, abuse of position of trust or authority – Scope for rebuttal of presumption of harm – Crimes Act 1958 (Vic) ss 45, 47; Sentencing Act 1991 (Vic) s 5(2).
CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Indecent act with child under 16 – Sentence of 7 years with non-parole period of 4 years – Offender 41, victim 15 – Victim’s consent did not mitigate – Offender took advantage of victim – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) ss 45, 47.
CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Offender 32, victim was stepdaughter aged 12 – Sentence of 2½ years with non-parole period of 18 months – Victim’s consent did not mitigate – Victim’s consensual participation emphasised offender’s breach of trust – Whether judge’s remarks created apprehension of bias – Delay – Depression – Good work record – Whether sentence manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) s 47.
---
| APPEARANCES: | Counsel | Solicitors |
For the Appellant Clarkson | Ms E McKinnon | Tyler Tipping & Woods |
| For the Appellant EJA | Mr O P Holdenson QC | Jeremy Harper & Associates |
| Forthe Crown | Mr J D McArdle QC with Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
---
MAXWELL ACJ
NETTLE JA
NEAVE JA
REDLICH JA
HARPER JA:
Summary[1]
[1]Note: a table of cases and abbreviations is attached to these reasons. The members of the bench are listed for those cases in which the consent question was considered. Cases are referred to in the body of the judgment using the abbreviated form. Footnotes give only the abbreviated case name and (where necessary) the particular page(s) or paragraph(s).
Consent is not a defence to the offence of sexual penetration of a child under the age of 16,[2] nor to the offence of committing an indecent act with or in the presence of a child under 16.[3] The first appellant pleaded guilty to offences of both kinds; the second appellant only to the indecent act offence. Each sought to rely on the complainant’s consent in mitigation of penalty.
[2]Crimes Act 1958 (Vic), s 45.
[3]Crimes Act1958 (Vic), s 47.
The important question raised by these appeals is whether, when an offender is sentenced for one of these offences, the victim’s consent to the sexual act(s) can be a mitigating factor. We will refer to this as ‘the consent question’. These reasons proceed, as did the appeal submissions, on the basis that ‘consent’ for this purpose has its statutory meaning of ‘free agreement’, but is broad enough to include instigation and encouragement, as well as willing participation or cooperation.[4]
[4]As to which, see Woods, 185, [53].
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent.[5] References to consent in these reasons should be understood as having that connotation.
[5]See Attorney-General’s Reference.
We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.[6])
[6]See [36] below.
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases – for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner – the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
At the other end of the scale, there are exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.
In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.
As will appear, these conclusions are consistent with what has been said by appellate courts, both here and abroad, over many years. We have derived particular assistance from the sustained and detailed exploration of these issues in the judgments of the West Australian Court of Criminal Appeal and, more recently, the Court of Appeal.[7]
[7]For ease of reference, we will refer to the WA appellate court throughout as the ‘WASCA’. Similar abbreviations are adopted for other intermediate appellate courts. A full list of abbreviations appears in the Table of Cases.
Introduction
The first appellant, Phillip Clarkson, pleaded guilty to four counts of sexual penetration of a child under the age of 16 years, and one count of wilfully committing indecent acts with or in the presence of the same child. He was aged 41 at the time. The victim was approaching her 15th birthday. One of Mr Clarkson’s grounds of appeal was that the judge erred ‘by giving insufficient weight to factors that reduce [his] moral culpability’, including the fact that the complainant had willingly participated in the sexual acts.
The second appellant, EJA, pleaded guilty to one count of committing an indecent act in the presence of a child under 16 years. The complainant was his 12-year-old stepdaughter. He was 32 at the time. He told police that his stepdaughter had asked him to have sex with her. In sentencing EJA, the judge said: ‘The question of consent between a 32-year-old stepfather and his 12-year-old stepdaughter simply does not arise, and I make no finding that the complainant consented in any way’. One of the grounds of appeal is that her Honour erred ‘in finding that the issue of consent was irrelevant to the determination of sentence’.
Initially these appeals were heard separately. When it became clear that the consent issue arose in both appeals, the President convened a bench of five (comprising the members of the separate appeal benches[8]) to hear argument on that issue. Counsel in both appeals made written submissions responding to the following questions:
[8]Neave JA was a member of the bench in both appeals.
Consent
•Is the fact of whether a child victim of sexual offending by an adult accused consented to that conduct relevant to the sentencing of that accused? That is, is the presence or absence of such consent relevant to the determination of the seriousness of the offending?
• If consent was present, is that a mitigating circumstance?
•If consent was absent, is that an aggravating circumstance in its own right (ie absent violence, threats etc)?
• Do the answers to any of the above questions depend on:
o the age of the child?
o the difference in age between the child and the accused?
Instigation
•Is the fact of whether the child victim encouraged the accused or instigated the offending relevant to the sentencing? That is, is that fact relevant to the determination of the seriousness of the offending?
•If there was such encouragement/instigation, is that a mitigating circumstance?
• Do the answers to any of the above questions depend on:
o the age of the child?
o the difference in age between the child and the accused?
The further hearing of the appeals was limited to argument on the consent issue. Counsel for all parties agreed that the other grounds of appeal need not be reargued, and that the transcript of argument at the earlier hearing would suffice to inform those members of the bench who had not been present.
On 13 December 2010, the Court announced that each of the appeals would be dismissed. We said that we would publish reasons in due course. These are those reasons.
In Part I, we explain our conclusions on the consent question. In Part II, we deal with the individual appeals.
PART I: IS CONSENT A MITIGATING FACTOR?
In addressing the consent question, it is necessary to begin with the language, and purpose, of the legislation prohibiting sexual activities with children under the age of 16. Axiomatically, it is from the language which Parliament has used that its purpose is to be discerned.[9]
[9]See, eg, ReBolton, [19].
Sections 45 and 47 of the Crimes Act 1958 (Vic) (‘the Act’) relevantly provide as follows:
45 Sexual penetration of a child under the age of 16
(1)A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2) A person who is guilty of an offence against subsection (1) is liable—
(a)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 12, to level 2 imprisonment (25 years maximum); or
(b)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 12 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or
(c)in any other case of sexual penetration of a child between the ages of 12 and 16, to level 5 imprisonment (10 years maximum).
(3) Subsection (1) does not apply to an act of sexual penetration if—
(a) the child is aged between 12 and 16; and
(b) the persons taking part in the act are married to each other.
(4)Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 12 or older and—
(a)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
(b)the accused was not more than 2 years older than the child; or
(c)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.
(4A)If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
47 Indecent act with a child under the age of 16
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.
Penalty: Level 5 imprisonment (10 years maximum).
(Section 47(2) is in similar terms to s 45(4), except that there is no requirement that the complainant be aged 12 or older.)
It is also axiomatic that these provisions must be interpreted in context.[10] Sections 45 and 47 are to be found in subdivision (8C) of the Act, entitled ‘Sexual offences against children’. Subdivisions (8A)–(8EA) define the various categories of sexual offending.
[10]CIC Insurance, 408; Alcan, 46–7, [47].
Like the other sexual offence subdivisions, subdivision (8C) is governed by s 37A of the Act, inserted by the Victorian Parliament in 2006. Section 37A defines the objectives of the subdivisions. The relevant objective for present purposes is that identified in s 37A(b), namely, ‘to protect children … from sexual exploitation’.
Section 37B, inserted by the same 2006 amending Act, sets out the following ‘guiding principles’:
It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that –
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d)sexual offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Parliament’s intention could hardly have been made clearer. Although enacted previously, ss 45 and 47 were thereafter to be treated as governed by the objectives in s 37A and the interpretive principles in s 37B. Relevantly for present purposes, these sections are to be approached – and interpreted – on the basis that children are vulnerable persons against whom a significant number of sexual offences are committed, and they must be protected from sexual exploitation.
How, then, should the Court interpret a provision like s 45, which makes it an offence to take part in an act of sexual penetration with a child under 16 whether the child consents or not? Or a provision like s 47(1), which prohibits a person from committing an indecent act in the presence of a child under 16 whether the child consents or not? (We will deal separately with the exceptional circumstances in which a child’s consent can constitute a defence.)
Parliament has provided that an offence under s 45, or under s 47, will be committed even where the child freely agrees to the act of sexual penetration or the indecent act (as the case may be). The legislative prohibition is absolute. Exceptions apart, sexual activity with a child under 16 is never permissible.
The contrast with the offence of rape is striking. Although the prohibition on rape is absolute, the offence itself is only committed if there is sexual penetration without the person’s consent. Further, the offender must be proved to have been aware that the person was not consenting, or might not have been consenting, or to have given no thought to whether the person was not consenting or might not be consenting.[11] A person (not being a child) can consent to being sexually penetrated. A child under 16 cannot. By fixing a minimum age of 16 years, the Act draws a clear distinction between those who are deemed to be capable of consenting to sexual penetration and those who are not.
[11]Section 38(2)(a).
In limited circumstances defined by s 45(4), the consent of a child aged 12 or older can render legal what would otherwise be illegal. Relevantly for present purposes, the child’s consent is a defence if:
(a)the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
(b) the accused was not more than two years older than the child …
(The third statutory exception concerns the existence of a reasonable belief in the existence of marriage with the child victim.)
Protection from harm
In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and – to that end – to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity.[12] Secondly – and in order to advance the protective purpose – the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
[12]Marris, [12]; Simon, [23].
These twin objectives were succinctly expressed by the FCSASC over 20 years ago, in Williams. The Court said:
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.[13]
The WASCA has consistently expressed similar views.[14]
[13]Williams, 254.
[14]Dempsey, 5; GP, 35; Millar, [31]; Riggall, 216–7, [21]; Poulton, [5]; Simon, [20].
The Victorian provisions reflect a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity. In 1981, a UK Home Office Policy Advisory Committee recommended that 16 should remain the minimum age for sexual contact with a female. The Committee emphasised:
·the physical harm which may arise from premature sexual experience;
·the undesirability of pregnancy at too early an age, and the adverse effects of abortion on future fertility; and
·the emotional and social harm which a girl may suffer if she has sexual relations at an age when she is not mature enough to cope with the consequences of a sexual relationship.[15]
[15]See M Waites, ‘The Age of Consent and Sexual Consent’ in M Cowling and P Reynolds (eds), Making Sense of Sexual Consent, 77–9.
Protection from harm is the core rationale for provisions such as these. In Hess, decided in the same year as Williams, the Canadian Supreme Court was dealing with an absolute prohibition against sexual intercourse with a girl under 14.[16] McLachlin J said that the provision in question had two objectives, as follows:
The first is the protection of female children from the harms which may result from premature sexual intercourse and pregnancy. The second is the protection of society from the impact of the social problems which sexual intercourse with children may produce.
… [T]he protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. Children merit this protection for three primary reasons. The first is the need to protect them from the consequences of pregnancies with which they are ill-equipped to deal from the physical, emotional and economic point of view. The second is the need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age. The third is the need to protect them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.
Each of these reasons to protect children against premature sexual intercourse is reflected in corresponding social problems. Juvenile pregnancies adversely affect both family and society. It is society which bears the cost of abortions, society which often pays for the care of infant and mother. The physical and emotional trauma inflicted on children through premature sexual intercourse are reflected in increased medial and social costs and decreased productivity. …
The effects of premature intercourse on young girls and on society in general have been well documented. One need only consult the judgments of the American courts upholding statutory rape provisions to gain an appreciation of the statistical data supporting the evils to which I have referred. They have also been recognised in Canada: see Law Reform Commission of Canada, Working Paper 22, Criminal Law: Sexual Offences (1978), 25-6.[17]
[16]Hess concerned the constitutionality of the provision under the Canadian Charter of Rights and Freedoms, having regard to the fact that it applied only to sexual penetration of girls and did not provide a defence of mistaken belief as to age. The majority held that the abrogation of that defence was inconsistent with the Charter and was not proportionate to the goals of the provision. McLachlin J dissented.
[17]Hess, 948, [102]–[106].
Much more recently, the House of Lords came to very similar conclusions. In G, decided in 2008, the House was considering the offence of intentional penile penetration of a child under 13.[18] There was no defence of consent. Nor was it necessary that the accused have been aware that the victim was under 13. Lord Hoffman said:
The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are.[19]
[18]Sexual Offences Act 2003 (UK) s 5.
[19]G, 96, [3].
Lord Hope said:
There is no doubt that when [this provision] was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them.[20]
And again:
Mistake as to age is a defence in the case of offences committed against older children. In the case of children under 13 it is not. This must be taken to have been a deliberate choice by Parliament which, under domestic law, it was entitled to take. The principle which has been applied is that intentional sexual activity of the proscribed kind with children below that age should not be permitted in any circumstances. In Hess McLachlin J said that the protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. [The provisions] were designed to protect children under 13 of both sexes from sexual conduct perpetrated against them by anyone.[21]
And again:
But there is great force in the point that McLachlin J made in Hess about the need for children to be protected. Their need to be protected against themselves is as obvious as is their need to be protected from each other.[22]
[20]Ibid 99, [14] (citations omitted).
[21]Ibid 100–1, [21] (citations omitted).
[22]Ibid 105, [36] (citations omitted).
Baroness Hale said:
Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
There are a great many good reasons for this: see, eg, R v Hess per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13 it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.[23]
And again:
But the message of [the provisions] is that any sort of act of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believes that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.
Section 5 reinforces that message. Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.[24]
[23]Ibid 107–8, [44]–[45] (citations omitted).
[24]Ibid [48]–[49].
What emerges clearly from these authorities is that absolute prohibitions on under-age sexual activity are founded on a presumption of harm. Adopting Baroness Hale’s phrase, premature sexual activity is presumed to cause ‘long-term and serious harm, both physical and psychological’ to the child. Premature sexual activity, for this purpose, means activity before the age when the child can give meaningful consent. It is for this reason that the presumption of harm is unaffected by the presence of consent.[25]
[25]McClymont, 7; Simon, [44].
The implications for sentencing
As counsel for the appellants pointed out, the Sentencing Act 1991 (Vic) requires Victorian sentencing judges to have regard, amongst other things, to:
·the nature and gravity of the offence;[26]
·the offender’s culpability and degree of responsibility for the offence;[27] and
·the impact of the offence on the victim.[28]
[26]Section 5(2)(c).
[27]Section 5(2)(d).
[28]Section 5(2)(daa).
It followed, so the appellants contended, that the victim’s consent must be capable of being a mitigating factor. The fact that the sexual contact was consensual would – or would be likely to – make the offence less grave, reduce the offender’s culpability and lessen the impact on the victim.
In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way. The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child’s ‘consent’ is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender.[29] Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.[30])
[29]Poulton, [3]; Edwards, [3]; GP, [3]; SJH, [69]; Simon, [23].
[30]Sulemanov.
To conclude otherwise, and to treat consent as mitigating, would defeat the objectives clearly set out in the Act. In order to advance the protection of children against the harms caused by premature sexual activity, the courts must enforce in the clearest terms the absolute nature of the prohibition. For the courts to endorse the notion that the child’s ‘consent’ makes the sexual activity less blameworthy, or less grave, would undermine the very protection of children which the legislation seeks to secure. As the WASCA said in Riggall, even where a young person does appear to wish to engage in sexual activity, ‘there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.’[31]
[31]Riggall, [21]. See also Deering, [20]–[21].
There is, we think, an instructive parallel with what Spigelman CJ said in Henry, in holding that drug addiction was not a mitigating factor in sentencing for armed robbery:
I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message.[32]
[32]Henry, 386, [206].
On this view, it cannot assist an offender merely to prove, on the balance of probabilities, that the child victim consented to the sexual act(s) in question. A sentencing judge is entitled – or, more accurately, bound – to reject a defence submission that proof of the victim’s consent, without more, justifies a more lenient sentence. For the reasons we have given, the offence provisions preclude a contention that consent as such makes the offence less grave, reduces the offender’s culpability or means that the harm to the victim is lessened.
Consent in context
In every case, however, the sentencing court will examine the circumstances of the offending in order to assess the gravity of the offence and the offender’s culpability. The court should never consider the child’s consent in isolation. Instead, the court will need to investigate the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. As the WASCA said in Riggall:
This Court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked or trusted adult (in a way often described as “grooming”), a child may come to enjoy in whole or in part the sexual attention to which they are subject. Such reactions are far from a free and voluntary consent. Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse.[33]
[33]Riggall, 216, [20].
Hence, the sentencing court will need to consider at least the following matters:
(a) the relative ages of the offender and the victim;
(b) whether the offender was in a position of trust or authority with respect to the victim which facilitated the commission of the offence;
(c) the situation of the victim, and the degree to which she/he was taken advantage of; and
(d) what the evidence shows about harm already suffered or likely to be suffered.[34]
[34]Simon, [24], citing Dempsey.
In Deering, the WASCA said that legislation of this kind was
directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited… [The concept of abuse is] of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of ‘grooming’, behaviour, or a betrayal of trust, the greater the culpability.[35]
Likewise in Simon, the WASCA said that the seriousness of the offending and the culpability of the offender would be aggravated by
abuse of a position or situation that enables the offender to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence.[36]
[35]Deering, [18].
[36]Simon, [23], citing Poulton, [4] and Western Australia v Lee, [2008] WASCA 150, [10].
In our view, the correct approach is exemplified by what the WASCA said in Edwards. There, the offender was a man aged 31, the victim a girl of 14. The offender pleaded guilty to two counts of indecent dealing and two counts of sexual penetration. The plea in mitigation was conducted on the basis that the child had been a willing participant, as appeared to be evidenced by some diary entries she had made.
In the Court’s view, the offences remained
grave offences notwithstanding the consent that was given. The nature of that consent must be considered. It was given by a child who had just turned 14, and was known to be in a disturbed state of mind and a very vulnerable situation. … The offences occurred within her aunt’s home, where she should have been protected and, if possible, guided – where, at least, no advantage should have been taken to exploit her for an adult’s sexual gratification. That a mature person acted on her childish consent was a betrayal. It was also a grave departure from the standard required of all persons by the law, so as to constitute a serious crime, aggravated by the applicant’s breach of the trust imposed on him by the situation.[37]
[37]Edwards, [9].
The Court directly addressed, and rejected, the offender’s argument that the complainant’s consent should have been treated as an element of mitigation:
The crimes were committed by indecent dealing with, or by sexual penetration of, a consenting child. The nature and circumstances of the consent were simply part of the series of events the occurrence of which constituted the crime and established the degree of its gravity. Crimes of this kind are most often committed within the home. Their commission is made easier by the dependent state of a child in that place vis-à-vis a dominant adult of the household. If the child consents, that consent cannot be divorced from the situation of both child and adult in which it occurs. The legislation aims to protect children, both against adults and against themselves. It would be quite inconsistent with the policy of the legislation to construe it as allowing an offender to mitigate the offence by obtaining consent.
…
Here, the consent did not detract from the crime, extenuate it or reduce the degree of moral culpability by comparison with some standard or normal version of the crime so as, in fairness and mercy, to mitigate it; the consent was but part of the very kind of situation at which Parliament aimed.[38]
[38]Ibid [15] (emphasis added).
This approach – of viewing consent in context – is equally well illustrated by cases at the opposite end of the spectrum. In MAN, the QCA was concerned with what it described as unique circumstances.[39] At the age of 19, the offender had begun a sexual relationship with each of twin girls aged 12. In each case, the relationship lasted for three years. Each girl gave birth to two children. The Court accepted that in each case the girl had been a willing participant in the sexual relationship.
[39]MAN, [2], [23], [28].
In the view of the Court, the circumstances disclosed a less serious degree of ‘sexual exploitation of young girls by an older man [than where] a mature adult male acts in a predatory and clandestine way’. The Court contrasted the case with those involving ‘a breach of trust in a grossly unequal relationship, usually perpetrated in secret’. In the case at hand, there was ‘greater closeness in maturity, age and balance of power’.[40] Accordingly, the Court accepted that the sexual relationships
while grossly inappropriate, appear to have been the result of affection, sanctioned by those responsible for the care of the complainants, rather than a cold-hearted and calculating quest for sexual gratification pursued callously and in secret.[41]
[40]Ibid [21] (citations omitted).
[41]Ibid [25].
A similarly exceptional case was considered by the South Australian Court of Criminal Appeal in Temby. The offender was 22 and the victim 15 years and 5 months. They commenced a consensual sexual relationship, but only after they had discussed their intentions with the victim’s mother and she had given her express consent.
In the view of the Court, the offender’s conduct was ‘so far removed from the usual kind of offending that questions of general and personal deterrence do not have the significance they might otherwise have.’[42] The Court said:
The purpose of the law prohibiting unlawful sexual intercourse is the protection of young women from the advances of men, older men in particular, and to protect them from their own immature inclinations. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls. When that purpose is identified, it is quite apparent that the offending in this case stands outside the normal course. Although the appellant was some six or seven years older than the complainant he had not simply taken advantage of her. He and the complainant had discussed the question whether they should engage in sexual intercourse with the complainant’s mother and obtained her consent. This was not … a breach of trust.[43]
[42]Temby, [21].
[43]Ibid [19] (emphasis added, citations omitted).
Of course, even where the offender is youthful and the age difference relatively small, the sentencing court will be astute to observe the legislative policy that children are to be protected against the harms associated with premature sexual activity. In Simon, the WASCA was concerned with a single act of sexual intercourse, between an 18-year-old male and a 14-year-old female who was a willing sexual partner. The Court accepted that there were strong factors in mitigation:
The appellant was young (either 18 or 19) and was only 4 or 5 years older than the complainant (who he believed to have been 15). He was immature for his age. There was no element of coercion, or even persuasion, and no breach of trust. The offence was isolated. The complainant, already sexually experienced, was a willing participant.[44]
At the same time, Steytler P said:
While these are telling factors, in my opinion they are not sufficient to have made it appropriate to impose any sentence other than one of imprisonment. As I have said, young people are intended to be protected, not only from sexual predators (I would not describe the appellant in that way), but also from themselves. This complainant was only 14 years old. The appellant believed that she was a year older than that but, even then, he should have appreciated that his conduct was inappropriate because of her age, even if he did not know that it was illegal. While the age gap was not as large as it is in many cases, it was not insignificant. As I have said, there was a difference of some 4 or 5 years. Even allowing for his immaturity, there is a significant difference between a 14-year-old and an 18-year-old.[45]
[44]Simon, [43].
[45]Ibid [44].
Rebutting the presumption of harm
On ordinary principles, it is open to an offender to seek to demonstrate, to the requisite standard of proof,[46] that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. Put another way, it is open to an offender to lead evidence to rebut the statutory presumption of harm. To the extent that such a submission relied on the consensual nature of the sexual activity, the court would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them, and the circumstances in which the sexual activity was initiated.
[46]Storey.
We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences.
Consistent with authority
The conclusions we have reached are consistent with the course of decisions in this Court. In 2001 in Nguyen, the Court was concerned with offences of sexual penetration of a 14-year-old boy by a 23-year-old offender. The sentencing judge had excluded from consideration all of the victim’s relevant conduct towards the offender, which included his having consented to the sexual activity. The Crown agreed that this was specific error. In resentencing, Chernov JA (with whom Callaway and Buchanan JJA agreed) said:
It is apparent that a principal aim of the legislation is to protect children and young adolescents who are generally vulnerable to persuasive conduct of older and more mature persons from being sexually abused by them. This case is not one of consensual sexual behaviour between two young persons of comparable age. The applicant was more than 50 per cent older than the victim and of the two he was clearly the more intelligent and mature. Although the victim did not know the applicant’s exact age, he knew that he was a university student and therefore a good deal older than he was. Those matters, and the fact that the applicant was obviously socially more experienced, were likely to have impressed the victim and confirmed in his mind the applicant’s more dominant position.[47]
Chernov JA continued:
… [I]t is necessary to take into account the fact that the offending has caused significant distress to the victim which is likely to continue for some time and may have a detrimental impact on him into the future. But it is also necessary, as I have said, to have regard to all the circumstances surrounding the offending. In my view, the applicant’s conduct was not predatory in nature, given that he was prepared to move on when the victim first told him he was not a ‘bi’. He remained to speak with the victim only because the latter lied to him about his sexual interests and experience and thereby aroused the applicant’s interest.[48]
[47]Nguyen, 481–2, [14].
[48]Ibid 482, [15] (emphasis added).
The approach we favour is well illustrated by the subsequent decision of this Court in Magner. The offender, who was 48, pleaded guilty to seven counts of incest and one count of indecent act with a 14-year-old girl. She had become pregnant to him as a result of his offending. Because of sentencing error, the offender had to be resentenced by this Court.
The Court noted that, although the earlier criminal acts were performed without any real consent, thereafter the acts were consensual and the victim herself had said as much. It was submitted that this circumstance reduced the gravity of the offence. The submission was emphatically rejected, as follows:
It was noted that a worker from the Department of Human Services described the complainant in July 1997 as a ‘young immature female who was clearly besotted with the appellant’. Whilst that may be so, the fact was that at the time of the last counts she was 14 years of age and he was 48 years of age. At that stage he was living in a family relationship in which he was the partner of the complainant’s mother. I have difficulty with this argument. I do not accept for one moment that this offence is less grave or less serious because there was a degree of consent to the relations. The legislation is there to protect young persons. Because of his relationship with the mother, the appellant was guilty of a grave breach of trust. He used his position to seduce a young girl, 34 years his junior. Further, it cannot be overlooked that the complainant in her victim impact statement made observations concerning the effect of his conduct resulting in her pregnancy at the age of 15 years and her lost adolescent years. She also made the observation that the child is a constant reminder of what the appellant did to her. These factors cannot be overlooked. Incest is a very serious crime and its effects can be long-lasting and traumatic.[49]
[49]Magner, [57] (emphasis added).
Jongsma was also decided in 2004, by the same bench as had decided Magner. The complainants, who were aged 14 or 15, were given cash and cigarettes by the offender in return for having sexually explicit photographs taken of them and for participating in indecent acts. The Court agreed with the statement of the trial judge that, whilst the willing participation of the victims was no excuse for the appellant’s behaviour, it was a factor to be taken into account in sentencing.[50] In the event, however, this aspect was dealt with very shortly indeed: ‘As to the argument that the victims were willing participants and even, sometimes, the initiators, the legislation is designed to protect children’.[51]
[50]Jongsma, 393–4, [10].
[51]Ibid 400, [27].
In LCC, the appellant, who was then 63 years old, had commenced building a house next door to the home of the two victims, who were sisters aged 14 and 15 respectively. The family was in financial difficulties. The appellant sought the victims’ assistance in the construction work. He then took advantage of these circumstances and paid both girls to engage in the conduct which gave rise to the offences. He paid them amounts varying between $15 and $40 on each occasion.
In her reasons for imposing sentences of imprisonment, the sentencing judge addressed various mitigating factors, but refused to accept that the alleged consent of the victims should be regarded as mitigatory. Indeed her Honour said:
You were, on any view, stating that you were prepared to exploit not only their age and their vulnerability in relation to your position, but further, that you perceived that because they were young girls who had very little finances, you could and did exploit their financial vulnerability as well. You preyed upon both of them in this way, and in my view it does make this offending all the more reprehensible. On any view, you exploited these young girls and took advantage of the imbalance in the power relationship between yourself and them.[52]
[52]LCC, [14].
This Court accepted the correctness of these sentencing remarks. Charles JA said:
I see no similarity between this case and Nguyen, upon which [counsel for the appellant] relied. Nguyen was aged 23 when he committed the offences in question, and the 14-year-old complainant in that case certainly consented to what occurred. In this case, however, the appellant was over 60 at the time of the offences and the victims were both 14 year olds when the offending began, they were sexually exploited by the appellant and he was able to do so because of their obvious financial vulnerability. I would accept the submission of [counsel] for the Crown that the judge was entitled to find that even if, after the appellant's initial advances, the complainants offered sex for money, the appellant's conduct was unacceptable in exploiting their youth and financial vulnerability.[53]
[53]LCC, [19].
Reference should also be made to Sulemanov, although neither counsel cited it on these appeals. There the 27-year-old appellant was found not guilty of rape but convicted of the alternative count of sexually penetrating the 15-year-old victim. In his appeal against sentence, the appellant complained unsuccessfully about the sentencing judge’s acceptance of the victim’s version of events. It was submitted that this was inconsistent with the acquittal on the count of rape. That submission was rejected by this Court. Vincent JA said:
It may be possible in some circumstances, and viewed from the perspective of the perpetrator, to distinguish between the moral culpability of an offender who engages in prohibited sexual activity in a case where absence of consent is not established on the one hand, and one in which the absence of awareness of lack of consent arises, on the other. But that is not a question that needs to be explored in the present context.[54]
[54]Sulemanov, [16].
His Honour continued:
The age of the victim of such an offence cannot, in my opinion, of itself constitute a mitigatory factor for sentencing purposes, although it may, in some situations be seen to aggravate its commission. The offence was created by Parliament to provide protection to young persons. That protection is not to be regarded as becoming less significant simply because the young person is approaching his or her sixteenth birthday. On the other hand, the younger, more vulnerable or less mature the victim is, the more heinous is the perpetrator’s behaviour. The disparity in the ages of the offender and the child is, accordingly, a relevant consideration.[55]
[55]Ibid [20].
Our conclusions also accord with the approach in other Australian jurisdictions, as is apparent from the earlier citations from appellate decisions in Western Australia, South Australia and Queensland. We would refer also to the decision of the NTCCA in Hitanaya. In that case, a 13-year-old pupil had developed a crush on a 37-year-old teacher, who was her pastoral-care group leader. A clandestine sexual relationship had then developed. It was common ground that the offender knew that the victim was under age and that what he was doing was wrong.
The sentencing judge noted, accurately, that the victim had been a willing participant in the sexual conduct. It was not, as a result, a case in which ‘the offender prevailed over the reluctance of a young victim to engage in sexual conduct with the offender.’ The Court commented:
To that extent the observations are correct, but the significance of the absence of this aggravating circumstance should not be misunderstood.
The fact that the victim consents to the sexual conduct is not a mitigating circumstance. Laws prohibiting sexual activity are designed to protect children from those who would exploit them and from themselves. Through Parliament, the community has set the age of which the community has determined that a young person can legally consent to sexual activity with another person. Below that age, even if the child consents, the sexual conduct remains an offence. The consent of the child is not a mitigating circumstance. On the other hand, it would be an aggravating circumstance if the offender used force or threats or other means to overcome a child’s resistance.[56]
[56]Hitanaya, [34]–[35].
The Court was here stating the position with which we began, namely, that consent of itself can never be a mitigating circumstance. The case is also a good illustration of the related proposition that the consent of a victim is usually a reflection of the relationship with the offender, and may in fact highlight the gravity of the offending. In Hitanaya, both the age difference and the offender’s position of responsibility and trust increased the seriousness of the offending. The Court said:
There was a strong causal connection between the position of care and responsibility occupied by the respondent with respect to the victim and the ultimate criminal offending. It was the respondent’s position of care and responsibility which directly enabled [him] to gain the special trust of the victim. In turn, this placed the victim in a position of vulnerability to the influence of the respondent and it was a vulnerability of which the respondent was well aware. Ultimately, the establishment of the special relationship of trust and the existence of vulnerability enabled the respondent to commence the sexual nature of the conduct and to escalate it into regular sexual intercourse over a prolonged period.[57]
In sentencing, the Court said, proper attention needed to be paid to
the critical features of the respondent’s criminal conduct which demonstrated an exploitation of the special position of trust and of the victim’s vulnerability for the respondent’s own sexual gratification.[58]
[57]Ibid [53].
[58]Ibid [54].
We refer finally to the NSWCCA decision in Dagwell. The offender was aged 47, the victim 13. The sentencing judge found that the victim had consented to the sexual activity. The Court said, however, that
[I]n the light of the difference in the ages between the respondent and the complainant there was little mitigation in the fact that the complainant was consenting and encouraging the respondent.
… The judge found that the degree of exploitation of the youth of the victim was ‘significant’ …
The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both serious and insidious. Users of internet chat rooms should be well aware that crimes committed in such circumstances are treated with great concern by the criminal justice system and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the respondent. The only way that this policy can be achieved is by the courts imposing condign punishment upon those convicted of such offences in the hope that others who [might be] minded to act in the same way might fear the consequences if they are caught.[59]
[59]Dagwell, [35], [37], [41].
PART II: THE SENTENCE APPEALS
Clarkson v The Queen
As noted earlier, Mr Clarkson pleaded guilty to four counts of sexual penetration of a child under the age of 16 years and one count of wilfully committing indecent acts with or in the presence of the same child. Each count encompassed multiple instances of the offence. He was sentenced as follows:
Count
Offence
Maximum penalty
Sentence imposed
Cumulation
1
Sexual penetration
10y
3y 6m
12m
2
Sexual penetration
10y
3y
9m
3
Indecent act
10y
2y
6m
4
Sexual penetration
10y
3y
9m
5
Sexual penetration
10y
4y
Base
Total effective sentence: 7y
Non parole period: 4y
Statement pursuant to s 6AAA: 8y 9m with NPP of 5yFactual background
The appellant is now 45 years of age. He was 41 at the time of the offending. At that time, his victim (‘L’) was approaching her 15th birthday. The age difference between offender and victim was therefore somewhat in excess of 26 years.
The offending occurred over a period of 21 days, beginning on New Year’s Eve, 2007. It ended, as her Honour was prepared to find, after the appellant had realised that he was acting beyond what her Honour described as ‘recognised boundaries’. This, her Honour also found, was before L’s parents, or the police, were aware of any sexual relationship between the appellant and L, and before the discovery, by L’s mother, of a diary in which L had recorded something of the nature of that relationship. Although not in narrative form, the diary entries drew a graphic picture of L’s infatuation with the appellant, and of the florid sexual behaviour in which they indulged. Parental and police intervention followed, as a result of which the charges were laid.
Her Honour was undoubtedly right to describe the appellant’s conduct as having gone beyond any recognised boundaries. He exploited L in order to indulge his voracious sexual appetites. Count 1 involved nine instances of digital penetration of L’s vagina (although we note that much of the relevant behaviour was a prelude to conduct which then became the subject of other counts). Count 2 encompassed four instances of sexual penetration by insertion of the appellant’s penis into L’s mouth. Count 3 included numerous instances of indecent acts in which L was involved: the removal of her clothing; masturbation in her presence; having her perform masturbation upon him; his touching and kissing of the complainant’s breasts; and his rubbing of L’s vagina on the outside of her clothing. Count 4 included five instances of sexual penetration of L’s vagina with his tongue; and count 5 included at least four instances of penile penetration of L’s vagina.
The appellant first came to know L when, at the age of about nine, she became friendly with his two stepdaughters. All three were pupils at the same school. The children visited each other at home. A friendship subsequently developed between the appellant and L’s parents. Then, over the New Year period 2007–08, the appellant and his son (who had become friendly with L’s younger brother) joined L’s family on a camping trip. In L’s words, she then ‘started to get an infatuation towards him because … he is attractive and I thought he was really nice. He was doing the right thing by me and my family’.
According to the account given by L to the police, the appellant’s offending behaviour began shortly after the new year began. The night was hot. L was lying on her back in the grass not far from a swimming hole. The appellant
came over and hopped on top of me ... and gave me a kiss on the cheek and picked me up and said ‘we’re all going swimming’ ... We all wandered down there and all went swimming… [a]nd me and [the appellant] got pretty close and I sort of had touched him on the arm… and then he gave me a hug and ... he started to touch me and just started to finger me and I didn’t ... make him stop because I wanted him to and that sort of happened and he was really drunk and then people were coming over, so I sort of pushed him away and I was just a bit spun out as to what had happened and I wasn’t 100 per cent sure that he ... knew what happened because he was pretty drunk and ... people do silly things when they’re drunk. So I sort of left it ... I was pretty emotional, I didn’t know – I felt sort of bad within myself that I had done the wrong thing to let that happen, but ... I was pretty happy about it as well because I was kind of into him, you know. I knew it was really bad and I knew it was really wrong ...
There is much of significance in this passage. It reveals a remarkably articulate and mature girl, given her age; but one who at the same time was ambivalent both in her attitude to the incident in the swimming hole and in her feelings towards the appellant. This ambivalence is evident throughout her statement. It resulted in L refusing, at least initially, to comply with the sexual demands of the appellant, a refusal also at times prompted by fear of being caught in the act. It is true that the appellant never resorted to threats or the use of force. But on occasions it was his persistence which overcame her initial resistance, to the point that no threat or force was needed to secure her involvement in the sexual activity.
Ground 1: consent and moral culpability
The appellant’s submissions made much of the fact that L was an eager participant in all of the illegal sexual activity. He contended that the sentencing judge had given ‘insufficient weight to factors that reduce the moral culpability of the appellant’, and had ‘misinterpreted the nature of the relationship’.
In his written submissions, the appellant contended that her Honour
without wishing to hear submissions from counsel for the appellant to the contrary, expressed a firm and settled view that the complainant was ‘confused and taken advantage of’, and ‘vulnerable’, and implied the appellant was a predator.
Further, it was said, her Honour ‘pre-emptorily warned counsel “… if there’s any suggestion that in some way she led him on … I’m not buying it …”’ This ‘foreclosure’ of the issue of instigation was said to have prevented her Honour from being informed of ‘relevant factors regarding the role and conduct of the complainant’.
A review of the plea transcript reveals that this is not at all what occurred. Defence counsel (who did not appear on the appeal) was not restricted in any way in the presentation of her submissions or in drawing attention to any matter relevant to her client’s culpability. Far from inhibiting counsel, it is almost always of assistance when a judge indicates what view she/he has formed after reading the materials, since it enables counsel to make appropriate submissions. Where an adverse impression has been formed, the judge will ordinarily be obliged to say so, in order to ensure procedural fairness.[60]
[60]See, for example, Humphries, [9]–[10].
In this case, her Honour said:
I’ve seen the video and I have read the material. The impression I’ve got is of an intelligent but confused young girl with respect to her sexuality, just the sort of young girl that a predator could take advantage of. I don’t think you have any solace in the way she appeared in the video or whether or not she had other experiences with other people. She certainly came across to me as someone who was confused and taken advantage of – she was vulnerable, she’s 14.
The following exchange then took place:
DEFENCE COUNSEL: She’s clearly taken advantage of, your Honour, I don’t seek to dissuade your Honour of that view. You’re right, she’s 14, my client is an adult and should have known better. It’s a simple analysis …
HER HONOUR: Yes, so if there’s any suggestion that in some way she led him on, … I’m not buying it …
DEFENCE COUNSEL: And I’m not making that submission, but the development of the relationship perhaps goes some way to explaining how my client let himself cross those boundaries, that’s as high as I put that. They’re boundaries that shouldn’t have been crossed. There’s no issue with that at all.
HER HONOUR: As long as you’re not putting it any higher than that, I hear what you say.
DEFENCE COUNSEL: No I’m not.
In sentencing Mr Clarkson, the judge noted the submission on his behalf that the mitigating factors included the fact that the sexual acts were consensual and that there was no coercion, threat or violence involved. In her reasons, her Honour said:
In cases involving abuse of children the Court of Appeal has said on many occasions that general and specific deterrence are paramount considerations. It was apparent from the facts in this matter that you took advantage of a young girl’s attraction towards you. You took advantage of her trust and your friendship with her family to abuse her in the family home. In her statement she said that she was angry … with herself as she should not have let it happen. You are the adult, she is the child, it was you who should not have let it happen. The sentence I deliver must reflect the community’s disgust for such conduct and the need for both general and specific deterrence. However, in sentencing you, I have also taken into account the mitigating factors outlined by your counsel.
In our view, her Honour’s analysis was unimpeachable. Consistently with the principles we have discussed, she sought to assess the offender’s culpability and the gravity of the offending by reference to the whole of the circumstances in which L came to be an active participant in the sexual activity. Not only was it open to her Honour to find that the appellant had taken advantage of L but his counsel had expressly conceded that this was so.
The absence of force or violence did not in any relevant sense ‘mitigate’ the offending. It simply meant that coercion – which, if present, would have been a significant aggravating factor – was not a sentencing consideration in the case.
It was said on the appellant’s behalf that he had taken the initiative to bring the sexual relationship to an end. It was rather more significant, in our view, that the appellant had persisted with the offending in full knowledge that it was wrong. In the course of the plea, defence counsel noted that L’s diary suggested that she was aware that if they were found out, ‘all hell would break loose’. L said the risk-taking had made her feel ‘alive and awake’. Defence counsel continued:
It’s really not about her assessment, your Honour. It’s obviously about Mr Clarkson’s in the sense that he was aware of the risks. That comes through too where [L] describes him as saying ‘I know I’m going to get into trouble here’ and ‘We can’t do this. I’m going to get into trouble’. But despite his awareness of those risks clearly he participated and persisted in what occurred between the two of them.
The harm caused was also highly relevant. As the judge said in her reasons:
[B]oth the complainant and her family have suffered great emotional distress due to your totally inappropriate conduct. In her victim impact statement the complainant states that she’s been extremely emotionally affected by what happened. It has reduced her self esteem and self respect levels to zero. She is angry, anxious and depressed and suffers from anxiety attacks on a regular basis. Most of all she suffers from a lot of guilt. She writes ‘There is still a part of me helpless and heartbroken, it will scar me for life, I do not feel like I can now maintain a relationship with a male at all, a sense of mistrust will haunt me forever’.
These were consequences beyond anything which L might have imagined when she first responded to the appellant’s advances. So would they have been for the great majority of persons of her age. As we have said, the law has for this reason placed first among its priorities in this area the protection of teenagers younger than 16 from any sexual engagement with adults – indeed, with persons more than two years older than themselves.
The task for a sentencing judge is to make a sound overall assessment of the objective gravity of the offending. Her Honour discharged that responsibility fully. We therefore rejected this ground.
Ground 2: manifest excess
The second ground of appeal was that the sentence was manifestly excessive. This, it was submitted, could be seen from the circumstances which, according to the appellant, surrounded the offences. They encompassed a mere 21 days. He initiated their cessation. The relationship was consensual. No actual or threatened violence was involved. There was only one victim; and she was only two months shy of 15 years of age. He pleaded guilty. The risk of his re-offending is, according to a psychological assessment, small. Finally, in the words of the appellant’s written submissions, the sentence was ‘well above the average of those terms of imprisonment imposed in this State for the offences of sexual penetration of a child under 16 and indecent act with or in the presence of a child under 16’.
The judge in her sentencing remarks took into account each of these factors, save the last. As the Crown submitted, the difference in age was considerable, and the appellant has five relevant prior convictions (three, some 17 years before the present offences, of wilful and indecent exposure in a public place; and two – in December 2005 – involving indecent acts with children under 16, in which he masturbated in front of his two stepdaughters, aged respectively 15 and 12). The offences now under consideration represented a significant escalation of the earlier offending, which meant that specific deterrence and protection of the public were sentencing considerations of high importance. General deterrence is also important because of the prevalence of sexual offences against children, and the often catastrophic effect of those offences on the victims.
All of the counts were rolled-up counts. As earlier described, each count encompassed multiple separate acts, each of which constituted the offence in question. The sentencing judge was bound to take into account all of the criminality involved in each rolled-up count, subject of course to the applicable maximum for a single count.[61]
[61]See O’Neill, [28]; PDA, [4].
The pattern is one of sustained sexual activity between a child and a man more than 26 years her senior, all concentrated into a very short period. The appellant was determined to exploit L for his self-centred advantage, knowing as he did this that he was betraying his friendship with her and her parents and the associated relationship of trust. No consideration other than his own gratification seems to have entered his mind.
As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[62]
[62]Karazisis, [127]; FAJ, [23].
Having regard to the features of the offending to which we have referred, and to the significance of both specific and general deterrence, we concluded that it was well open to her Honour to impose the sentences which she did.
It was for these reasons that the appeal was dismissed.
EJA v The Queen
The second appellant, EJA, was acquitted by a County Court jury of five counts of incest[63] but in respect of one incident pleaded guilty to the statutory alternative of committing an indecent act in the presence of a child under 16 years.[64] He was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. The maximum penalty for this offence is 10 years’ imprisonment.
[63]Act, s 44(2).
[64]Act, s 47.
EJA was aged 31 when he committed the offence against his 12-year-old stepdaughter (M). M’s mother, who was at that time married to EJA, found them together in the bungalow at the rear of the family home. She opened the door and saw the appellant bent over M, who was lying down on a bed with her legs apart. Both were naked from the waist down. When the appellant realised that he had been observed, he turned around and sat on the bed next to M. He then said that he was glad that his wife had interrupted them and that M had been ‘asking for it for ages’. The incident was not reported to police until June 2008, when M was living with her biological father.
In his record of interview, the appellant said that M had instigated the incident by asking him to have sex with her. He denied penetrating her vagina but said that, had he not been interrupted, he probably would have done so.
The appellant admitted 18 prior convictions arising from five court appearances, the last of which was a 2001 conviction in the Magistrates’ Court for destroying property. In 1999, there were court proceedings against him for sexual offences against his two young nephews committed when EJA was aged 15. He was then convicted and received a suspended sentence for two counts of indecent act in the presence of a child. On appeal to the County Court, he was sentenced without conviction and placed on a good behaviour undertaking for 12 months. He did not breach that undertaking.
EJA had a difficult upbringing and a strained relationship with his parents, especially his mother, who was physically abusive. At the age of 16, he began using drugs and consuming alcohol but had since stopped using drugs. He lived with various relatives until he met M’s mother. Their relationship lasted 13 years (ending about two years before the date of sentencing) and they had seven children together. At the plea hearing the appellant was said to be still affected by the death of their young son in 2001, caused by a severe reaction to a medical inoculation.
A psychological report prepared by Dr Aaron Cunningham, a forensic psychiatrist, was tendered on the plea. Dr Cunningham expressed the following opinion:
Results of the mental status exam and clinical interview indicated a diagnosis of Affective Disorder and Bereavement. Psychometric testing indicated a cognitive level within the Low Average range. There was an indication of an underlying verbal learning disorder. Sexual recidivism risk assessment indicated a medium risk of sexual reoffending. This risk appears to be based on [EJA’s] [sic] psychosocial instability rather than to an underlying sexual deviance. There was an indication of childhood instability in the form of parental divorce, physical abuse, childhood offending and maternal disconnection.
…
[EJA’s] Affective Disorder and Bereavement would impair his general functioning by reducing his motivation and ability to mange and identify stressors. His disorder appears significant in that he has attempted suicide on numerous occasions. [EJA] presents with a significant amount of psychosocial dysfunction. His symptoms of depression and anxiety appear to have impaired his ability to manage the care of his seven children as well as his partner. He presents with instability in his vocational history, which led to increased financial pressure within the family. This in turn appears to have led to relationship instability and an intimacy deficit between he and his partner. The cumulative effect of [EJA]’s risk factors would have impaired his ability to exercise appropriate judgment and consider the wrongfulness of his offending conduct.
Ground 1: consent
Ground 1 was in these terms:
The sentencing judge erred in finding that the issue of consent was irrelevant to the determination of sentence.
The ground was based on the following passage from the judge’s reasons:
Defence counsel argued that I should find that the complainant consented to your behaviour and that that should diminish your sentence. I reject that submission absolutely. The question of consent between a 32-year-old stepfather and his 12-year-old stepdaughter simply does not arise, and I make no finding that the complainant consented in any way.
It is instructive to consider the exchanges which took place on this topic in the course of the plea. First, defence counsel invited the judge to consider ‘who instigated the conduct in the bungalow’. Her Honour responded: ‘I disagree with that entirely. I cannot understand how … any person can say, “this 12-year-old girl led me on”.’ Subsequently, her Honour commented that, in his interview with police, the defendant appeared to have laid ‘all the blame, really, at the feet of his 12-year-old stepdaughter.’ Defence counsel responded by saying: ‘He does not blame her, he says she instigated it.’
Defence counsel’s chief concern appeared to be to point out – correctly – that if the prosecution wished to contend that the appellant had taken M to the bungalow for the purposes of sexual activity, that would need to be appropriately proved. When her Honour said: ‘All I know is they both ended up in the bungalow’, defence counsel understandably moved to another topic.
The discussion about consent took a similar course. The judge commented that it seemed, by reference both to the prior offending and to the present offence, that the appellant had ‘taken advantage of the family situation and … assaulted only members of his family.’ Defence counsel responded:
In my submission, he has not assaulted anybody. The conduct may well be regarded as consensual. Certainly, your Honour cannot be satisfied beyond reasonable doubt that it is non-consensual. I accept he has offended against members of his family, that is a breach of trust, I accept those things …
In short, defence counsel did not ask the judge to make an affirmative finding that the sexual contact was consensual, less still to find that the consent made the offending less serious. Rather, he was concerned – again, quite correctly – to ensure that the prosecution were not suggesting that there was a proven absence of consent. This was made clear by what defence counsel said in reply, as follows:
I would wish to clarify for your Honour that I don’t positively assert that it was a consensual act. I say that that is an inference that is open to your Honour. Your Honour only has to be satisfied on the balance of probabilities to reach that conclusion. What I say, though, is that the evidence can’t possibly satisfy your Honour beyond reasonable doubt that it was a non-consensual act. I am sorry that we have spent so much time on this issue because I submit it is not particularly significant …
Plainly enough, her Honour was not asked to make an affirmative finding that M had consented, and there can be no complaint on appeal of her having failed to do so. In our view, the statement in the sentencing reasons that the question of consent ‘simply does not arise’ can be viewed in either of two ways, neither of which is indicative of error. First, her Honour may have been saying no more than that consent as such is irrelevant to sentence. For the reasons we have already given, that is a correct statement of the law. Alternatively, her Honour may have been expressing, in short form, a view that, having regard to the age difference and the relationship of trust between stepfather and stepdaughter, the consensual participation of M in the sexual activity should be regarded only as emphasising the gravity of the appellant having taken advantage of the relationship and breaching that trust. Plainly enough, as his stepdaughter and being 20 years younger, M would have had the greatest difficulty in refusing to cooperate with the appellant. So much must have been obvious to him at the time.
Ground 1 was therefore rejected.
Ground 2: prior offending
Ground 2 was in these terms:
The sentencing judge erred in finding that specific deterrence was a matter of significant importance because the appellant had previously had imposed upon him, at the age of 15, a sentence of imprisonment for a similar offence which had been successfully appealed.
During the plea hearing, defence counsel told her Honour that when the appellant was 15 there was an incident involving an indecent act with two of his nephews, but that he had not been charged until 9 or 10 years later. Counsel submitted that general deterrence could be achieved by a community–based disposition or a wholly-suspended sentence.
In her reasons her Honour said:
In relation to specific deterrence, that is that you, yourself must be deterred from acting in such a way ever again. I note that you have that prior matter which involved your nephews, and you were only 15, but it does, I suppose, indicate that you have had some difficulty with dealing with your sexual feelings in relation to other younger members of your immediate family.
Her Honour had earlier been interrupted by defence counsel, who said that, in relation to the matters which involved his nephews, the appellant had been found guilty without conviction. There was then discussion with counsel as to what had occurred. Her Honour noted that the appellant had initially been sentenced on one offence to a term of imprisonment for a period of two months, such sentence being wholly suspended for a period of 24 months, and for the second offence to a community-based order. She then said:
You were brought before the court for breach of that Community-based Order, and ordered to pay a fine. You also breached the suspended sentence and the sentence was restored and you served that period of two months imprisonment.
Sentence was then varied on appeal at the County Court … on 20 November 2000. And you were sentenced without conviction and placed on an undertaking to be of good behaviour. So that is what you were referring to.
On the appeal, counsel for EJA submitted that her Honour had erred in finding that specific deterrence was a ‘matter of significant importance’, because the appellant’s convictions had been set aside on appeal and he was instead required to give an undertaking to be of good behaviour, which he did not break. Counsel for the Crown pointed out that the matter was discussed during the plea and during her Honour’s delivery of her sentencing reasons, and submitted that her Honour had been in no doubt as to how the matter was finally resolved.
As appears from the second extract above, her Honour was fully aware of the appellant’s prior history and knew that no convictions had been recorded. Despite that fact, her Honour correctly gave some weight to specific deterrence. Although the appellant was only 15 when he committed the previous offences, the fact was that he had previously been involved in sexual offending against family members. The successful appeal against sentence was irrelevant in that regard. The forensic psychiatrist’s report said that the appellant was at ‘medium risk’ of re-offending. In these circumstances, it was entirely appropriate for her Honour to give some weight to specific deterrence.
Ground 2 was therefore not made out.
Ground 3: apprehended bias
As originally formulated, ground 3 was in these terms:
The sentencing judge’s exercise of discretion miscarried because the judge was impermissibly influenced by the conduct of the trial.
At the hearing of the appeal, counsel for the appellant was given leave to reformulate ground 3, as follows:
3The learned sentencing judge’s exercise of her sentencing discretion:
3.1miscarried because her Honour was impermissibly influenced by the conduct of the trial;
3.2miscarried because her Honour was biased against the Appellant; and/or
3.3was tainted because her Honour’s remarks in the course of the trial and plea, viewed in light of the sentence she imposed, gave rise to a reasonable apprehension of bias.
Grounds 3.1 and 3.2 were subsequently abandoned. In support of ground 3.3, counsel for the appellant contended that remarks made by her Honour during pre-trial processes, in discussion with counsel during the trial, and in the course of the plea should be read in their totality. Taken as a whole, it was said, her Honour‘s remarks gave rise to a reasonable apprehension that her Honour had formed a view that the appellant was guilty of the incest offences of which he was acquitted and considered that his vigorous defence in relation to those counts was unreasonable and/or futile. This, in turn, created a reasonable apprehension of bias in relation to the sentencing process.
In Livesey, the High Court said that the test for determining whether there was a reasonable apprehension of bias was whether
in all the circumstances the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.[65]
Such an apprehension may arise at the commencement of the trial or from an event which occurs during its conduct.[66] In Galea, Kirby ACJ said:
From first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point there is a loss, in fact or appearance, of that impartiality the trial will thereafter miscarry. The litigant who can establish such a miscarriage has not had a trial according to law.[67]
[65]Livesey, 293-4.
[66]Galea, 277-8.
[67]Ibid 278. See generally Candetti, [32]–[42].
Counsel for the appellant provided a schedule containing all the remarks said to create the apprehension of bias. We have taken account of all the matters on which counsel for EJA relied, but refer in detail only to those on which counsel specifically relied at the hearing. (Comments to which no reference is made provide no support for this ground of appeal.[68])
[68]For example, the statement that ‘I can’t believe this stuff is happening’ which related to a conversation which was audible in the background on the VATE tape, and the fact that it had not previously been identified by defence counsel as a problem; the reference to ‘a difficult little enterprise’, which related to the fact that one of the jurors was in a wheelchair; and the remark that ‘I’m certainly not on the same page’ which referred to the use of the word ‘Emo’.
We refer first to statements made by her Honour during pre-trial argument that the defence did not ‘have a lot of legs’ and that it would ‘be nothing’. It was said that both these remarks indicated that the judge had taken the view that the appellant did not have a defence to the incest charges. We disagree. The first remark was a reference to EJA’s assertion that M had ‘blackmailed’ him into sexual activity and was an accurate statement of the law. The second was a reference to defence counsel’s submission that, if too many excisions were made from the record of interview, ‘it’ll be a totally different defence case’. Her Honour was simply agreeing with defence counsel’s submission.
Complaint was also made about the judge’s response to defence counsel’s proposal to put documents to M in cross-examination at the special hearing.[69] Counsel wanted to put to the girl that she was an ‘emo’, that she had a friend who was ‘an emo’ and that she had used social networking sites to communicate with other ‘emos’. Her Honour responded that this would not lead anywhere unless the girl was first asked what an ‘emo’ was. Defence counsel pointed out that documents from the Department of Human Services referred to M (or possibly her friend) as being an ‘emo’ and that he was entitled to put ‘any document’ to M.
[69]Counsel relied on Orton.
There was then discussion relating to the fact that material in DHS documents might contain hearsay. Ultimately her Honour held that such documents were not relevant. The judge went on to rule that defence counsel could put to M that she was being dishonest and could ask her if she had seen an ‘emo’ website, but that if M denied knowledge of such websites, the cross-examination could go no further. Her Honour’s remark that this ruling ‘may be appealable but I don’t know if we are going to chase every rabbit down every burrow’ was also said to raise an apprehension of bias, but it was simply a response to counsel’s question about whether he had to comply with the ruling.
It is sufficient to say that we saw nothing in these exchanges which would distinguish them from the kinds of exchanges which take place every day in the course of criminal trials. Counsel for the appellant also complained that the judge had repeatedly expressed frustration with the length of time the trial was taking and with the persistence of defence counsel in raising legal issues. Attention was drawn to a comment that ‘this was already the slowest process I’ve ever been through’. It was clear, in our view, that her Honour was simply responding to an observation by the prosecutor that the need to switch off the recording of the complainant’s evidence, in order to deal with a defence objection, was ‘a potentially slow process’.
Clearly, her Honour was frustrated with the time the proceedings were taking. Many of her Honour’s remarks were directed not at defence counsel but at the technological difficulties experienced in relation to the special hearing process. Her Honour did express her irritation with defence counsel when she said that ‘he had a difficulty with everything’. While some of that irritation may well have been justified it would have been preferable if her Honour had not expressed it. But what Kirby ACJ said in Galea is applicable to the present case:
A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.[70]
[70]Galea, 279.
Counsel also complained about her Honour’s remarks after the first jury was discharged. On 21 October 2009, after three days of pre-trial discussion and some witnesses having given their evidence on the voir dire, the judge was told that a jury member reported having anxiety attacks. The judge said to the juror that she understood he had been having difficulties. He responded that he ‘had nerves’ but had medication and would ‘get through’. Counsel for EJA then applied for a discharge of the jury. Her Honour acceded to that request, commenting that it would be safer to do so. An application was then made by counsel for a certificate under the Appeal Costs Act1998 (Vic). Her Honour said that she ‘could not think about it’ then, but later granted the certificate sought.
The trial was adjourned to 26 October 2009. There was then further discussion between the judge and counsel before the second jury was empanelled. On 27 October 2009, the proceedings were resumed and her Honour said ‘[g]ive us this day our daily difficulty’. It was submitted on the appeal that both her Honour’s refusal to grant the costs certificate immediately and her comment upon the resumption of the trial gave rise to a reasonable apprehension of bias. This submission must be rejected. In our view, her Honour’s deferral of consideration of the application for a costs certificate was of no consequence, and her remark on the resumption was directed to the difficulty of conducting the trial, rather than to difficulty arising as a result of submissions made by defence counsel.
Reliance was also placed on a remark by her Honour during discussion with counsel that ‘[t]he only difference between this one is that he was caught’. This remark was made during a discussion with defence counsel about what the jury should be told in relation to the guilty plea to the statutory alternative to incest. The discussion was as follows
HER HONOUR: See, whatever’s going to happen, the difficulty here is that they already have, now, the admission of the facts of sexual events with this complainant.
DEFENCE COUNSEL: Yes.
HER HONOUR: They have that. So they start out with that, now what use – the question is you might have to seriously think about is what use they make of that.
DEFENCE COUNSEL: Yes, well my submission is likely to be about making a submission at the moment, Your Honour, that – certainly there’s no question of it being used in a propensity sort of way.
HER HONOUR: No.
DEFENCE COUNSEL: But, also, the admission or proof of that offence does not provide in the particular context for earlier events. It’s hard to see how a subsequent event can provide context for earlier ones so my submission is likely to be that they can’t use it.
HER HONOUR: Well the only difference between this one is that he was caught.
DEFENCE COUNSEL: Well, it might be - - -
HER HONOUR: What her position is, that this was going on but no one else knew.
DEFENCE COUNSEL: Yes but the admission is in relation to Count 5 and the admission in relation to Count 5 can’t be used to show a context in respect of an earlier event. So it may be that that’s her position and I appreciate that is her position but, in my submission, that doesn’t enable the evidence to be used in any - - -
HER HONOUR: Well, I think what I would have to say is that the – I have to refer to it somewhere because otherwise it’s very dangerous.
Understood in its context, her Honour’s observation ‘that the only difference between this one is that he was caught’ was innocuous. She was stating the undoubted fact that the difference between the occasion the subject of the guilty plea to count 5 and the other occasions on which M said that intercourse had taken place was that EJA had been observed committing the indecent act which constituted count 5. This exchange was followed by a discussion of the appropriate warnings to be given to the jury, and this demonstrates that – far from expressing a view that the appellant was guilty of the incest counts – her Honour was concerned to ensure that the jury did not reason impermissibly from his guilty plea on count 5.
Counsel also complained about a number of remarks made by her Honour during the plea hearing. We referred earlier to her Honour’s remark that she could not understand ‘… how any person can say this 12-year-old girl led me on’. Her Honour was perfectly entitled, in our view, to be highly sceptical about a 32-year-old man’s claim that a 12-year-old had induced him to have sex with her. Apart from its inherent implausibility, the very suggestion invited the inference that the appellant had failed to accept responsibility for what had occurred. Her Honour was right to express those concerns, as it enabled defence counsel to address them.
Counsel also complained about her Honour’s remark that, although EJA had admitted the offence to the police, he had ‘laid the blame’ for the offence at the feet of his 12-year-old stepdaughter. As we have said, it was entirely appropriate for her Honour to test the submissions which related to the appellant’s acceptance of his responsibility for the offending. The appellant’s attribution of blame to the complainant casts relevant light on whether he was remorseful, and was directly relevant to the weight which should be given to specific deterrence in sentencing him. Nor did her Honour’s description of the circumstances of the offending as ‘blatant’ suggest bias. Her description was entirely accurate.
The only remarks which might be thought to raise any question of apprehended bias were those related to the difficulties faced by M in reporting the offence, and to the delay in prosecution which occurred because her mother had decided that the offence should not be reported. It is necessary to set out the exchange between the sentencing judge and counsel in full.
HER HONOUR: I have to sentence somebody who has behaved in a criminal way, would be the best way to put it, with his 12 year old stepdaughter who he has brought up since she was a very small child, in the context of a family where she has seven half-siblings, all younger than herself, plus, I think two older, seven half-siblings who are in the same family and therefore - - -
DEFENCE COUNSEL: I think she was the eldest, Your Honour, but yes.
HER HONOUR: Two older and another one younger. Her mother had another one with another person who wasn’t [EJA]’s. [C1]. He is younger than [C2]. There are seven actual [siblings].
DEFENCE COUNSEL: Yes, indeed.
HER HONOUR: This girl, at 12, in that circumstance, how does she then do anything about this?
DEFENCE COUNSEL: How?
HER HONOUR: No one seems to want to go to the police and she doesn’t want to go to the police. What does happen, of course, is the entire family is broken up when the matter is reported, that is what happens. Children in that position have to be protected.
DEFENCE COUNSEL: I understand your Honour’s sympathy for somebody placed in that position, however, that - - -
HER HONOUR: Then she has the initial thing of the jury have to be told that because of the delay, there are certain things, so her memory won’t be as good and[EJA] will have missed out on the right – there will be forensic disadvantage for [EJA] and the whole thing is just really extraordinarily difficult. How is one to protect people like [M] in a family situation if these things are accepted and [EJA], for example, as you were saying gets a bond with a suspended sentence?
DEFENCE COUNSEL: They shouldn’t be accepted, they must be denounced but it is not your Honour’s task to protect other children unknown to [EJA].
HER HONOUR: But it is.
DEFENCE COUNSEL: From [EJA].
HER HONOUR: By deterrence, by people understanding that if you abuse children in your care and then, of course, they can’t go, and there is delay, and whatever the situation. Eventually, you are going to have to pay the consequences and people need to understand that, that when you abuse a 12-year-old child within your family, who you have been caring for, you have to face the consequences.
DEFENCE COUNSEL: That must be accepted, your Honour. I don’t quite understand the significance of the delay.
HER HONOUR: I am just saying that was one of the things I found difficult in the trial, that because the parents in all their wisdom decide it shouldn’t be reportable because it is in [EJA]’s interest, that the mother also says, ‘Well, we won’t report it’. Then the case is weakened because of the delay.
DEFENCE COUNSEL: I suppose that is a situation that arises wherever an offence is committed in a situation where the offender and the victim are in a strong relationship and it is unfortunate, but in my submission it shouldn’t bear too heavily upon the sentence that [EJA] receives today.
HER HONOUR: In a way I am just saying that should not be, the accused should not have any advantage from the fact that it has been delayed, is what I am saying.
DEFENCE COUNSEL: The difficulty there is if one imposes a rule like that there will then be people who are wrongfully accused who are subject to a delay and can’t - - -
HER HONOUR: No, the people who are not perhaps in the family situation. This is a particular situation where [EJA] is actually caught in flagrante delicto.
DEFENCE COUNSEL: Yes.
HER HONOUR: And therefore he should not be able to have had any advantage in the trial by delay.
DEFENCE COUNSEL: He certainly shouldn’t have had any advantage in the trial as far as this offence is concerned but he pleaded guilty to this offence, but the trial was about other offences that he has been found not guilty of.
HER HONOUR: All I am saying is that I think perhaps the law should be looked at, and certain things should be reformed because I just can’t see how there is any justification for having to give that warning in these circumstances. That is nothing whatever to do with the – what I am talking about is the protection of children who are in a terrible position and a 12 year old child, whatever [EJA] might have thought, she is in a really terrible predicament because if she does report things, she does go to the police, of course, all hell breaks loose and her life has never been the same and nor has anybody else’s.
DEFENCE COUNSEL: That is so. In my submission, the delay issue isn’t germane really to this point.
HER HONOUR: I agree. I just thought I’d bring that up as well.
DEFENCE COUNSEL: A very much related issue is the issue I have already raised about what the circumstances in fact were of the offending. My submission is that the account that [a child witness] gave has been rejected by the jury and if one is to give full effect to the jury’s verdict one can’t then accept her truthfulness as a matter of course. I don’t say that means your Honour should accept [EJA]’s version.
HER HONOUR: I think you put it very well when you said ‘probably is not enough’. And they might have thought probably but we can’t, it is only her word against his.
DEFENCE COUNSEL: But probably isn’t enough for your Honour either.
HER HONOUR: No, it is not enough. I am not sentencing him for the incest, I am sentencing him for indecent act but in that indecent act I also have, because I have read the record of interview, and I know that the question was not appropriate but he was not there, he was definitely – had no one interrupted then probably the incest would have occurred. Although the jury aren’t to know that, I do know that. I would be entitled to take that into account, I believe.
DEFENCE COUNSEL: Your Honour is entitled to take that into account as long as your Honour has regard to the fact that it is [EJA]’s assessment in 2008 of what would have happened, rather than his interpretation at the time.
These comments appear to have been primarily directed at the defence submission that EJA should receive a bond and that it was not the Court’s task ‘to protect other children unknown to [EJA]’. Her Honour was, of course, correct to have regard to the need to protect other children. This was relevant both in relation to the risk which EJA himself presented, and in relation to general deterrence.
Her Honour made general comments about the difficulty faced by children in reporting sexual offences and about the forensic disadvantage to EJA caused by delay, and asked rhetorically, ‘[h]ow is one to protect people [like M] if these things are accepted’ and the appellant were sentenced to a bond or received a suspended sentence. She then went on to make comments about the need for law reform to remove the requirement to give a warning about the effects of delay, in a trial where the complainant was a child.
With respect, we think these were injudicious remarks. Although her Honour was entitled to take account of the practical difficulties faced by children in reporting sexual abuse by a family member, and the psychological effects of those difficulties, the requirement to give jury warnings about the effect of delay had no relevance to the sentencing task. Had it not been for what her Honour said subsequently, we might well have concluded that those remarks created the impression that her Honour considered that the appellant was guilty of the incest counts on which he was acquitted, and that she might have taken that into account in sentencing him.
What her Honour specifically said, however, was that she was not sentencing the appellant for any alleged act of incest. Rather, she was sentencing him for the indecent act which, if it had not have been interrupted, would probably have led to incest. Defence counsel conceded that this was so, as it plainly was, given that it was the defendant’s own admission.
For the reasons we have given, we were not persuaded that her Honour’s remarks were such as to give rise to a perception in the mind of a reasonable, informed observer that the judge might not bring an impartial mind to the task of sentencing the appellant. We were fortified in this conclusion by the fact that defence counsel did not ask her Honour to disqualify herself, following the remarks made in the course of the plea.
For these reasons ground 3 failed. We should not leave the subject, however, without reiterating how important it is that judges in criminal proceedings should be careful to avoid gratuitous or intemperate remarks. The pressures on judges in the conduct of trials and sentencing hearings are very great, and appropriate leeway must always be given when comments are made in the heat of the moment. But this case is a salutary reminder of how easily remarks made in running can be taken out of context and misinterpreted.
Ground 4: manifest excess
Ground 4 contended that the sentence was manifestly excessive. The appeal submission relied on the matters covered by grounds 1 and 2, together with:
·the fact that he had confessed to the offence when first interviewed and had indicated that he would plead guilty;
·the delay between the offence and sentencing, which was not mentioned in her Honour’s sentencing reasons;
·Dr Cunningham’s opinion that the appellant’s capacity to exercise judgment was impaired, that he had symptoms of anxiety and depression and that a term of imprisonment would increase the severity of the appellant’s disorder; and
·the appellant’s personal background, including his reasonably good work record, and the availability of better housing so he could have better access to his children.
Counsel for the Crown submitted that the sentence of two years and six months’ imprisonment with a non-parole period of 18 months was open to the learned sentencing judge in the exercise of a sound discretionary judgment.
In our opinion, the sentence imposed was reasonably open to the judge in the circumstances of the case. The offence was a very serious one. It involved the abuse of a 12-year-old girl by a man who had been her stepfather since she was five years old. He had previously committed sexual offences against two nephews, although he was only 15 at the time. He lacked insight into the effects of his offending on the victim and sought in his record of interview to lay the blame on her. In these circumstances, her Honour was bound to give significant weight to specific deterrence, as well as to the denunciation of the appellant’s conduct.
Her Honour took account of relevant mitigating factors including the appellant’s guilty plea. She referred to the principles in Verdins and noted that the appellant had symptoms of depression and anxiety, which Dr Cunningham reported would have impaired his ability to exercise judgment. She said that she had taken his mental state into account to the extent appropriate.
The judge did not refer to the relevance of delay between the commission of the offence and the imposition of sentence, in sentencing the appellant. The delay between the commission of the offence and its report by M was, at the most, two years.[71] Such a delay will receive little weight in sentencing. In Nikodjevic,Ormiston JA said:
[O]ne should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with some care by Callaway JA in MWH. Thus it may show reformation of character over a significant period of a kind which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. But delay of that kind, which may arise in sentencing sexual offenders … does not give an automatic right for a reduction or discount in sentence. For example, an argument could not be put forward on the basis that the sentence had been hanging over an offender for a long time if in fact detection had occurred only a few months before sentence. It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later where the complainant had first felt safe to complain about her father’s conduct only at the age of 18, and the charge had come on promptly for sentencing, whatever might otherwise be said about his behaviour and apparent reformation in the meantime.[72]
[71]The offence was committed between 18 July 2006 and 30 April 2007.
[72]Nikodjevic, [21] (citations omitted).
EJA made an admission in respect of count 5 when interviewed by police on 11 June 2008, but was not sentenced for that offence until 18 December 2009. During that period he faced the prospect of trial on the incest counts and of a sentence on count 5. Although there was no suggestion of any re‑offending during that period, the appellant had taken no steps in that period to address his sexual offending. In these circumstances the delay was not a matter of any great significance.[73]
[73]Cf Merrett, [35]–[40].
Defence counsel on the plea submitted that the appellant’s psychological condition required some moderation of general deterrence, but did not assert that a high degree of moderation was required. Nothing in her Honour’s reasons or in the sentence imposed indicates that she applied the relevant principles incorrectly. In our opinion, the sentence imposed on EJA was within range.[74]
[74]Cf the terms of imprisonment imposed in R v Scott (2009) 22 VR 41 (12 months, offender a family friend aged 39, victim aged 14); R v Bowdler [2005] VSCA 246 (three counts, sentences ranging from 3 months to 2 years and 6 months, father/stepfather of victims aged between 6 and 8, and 12); R v Cass [2005] VSCA 77 (9 months on each of the five counts of indecent act with a child under 16 and each of the five counts of indecent act in the presence of child under 16, 43—44-year-old family friend, victim 12–13); R v JG [2005] VSCA 74 (five counts of indecent assault of a child, sentences ranging from 12 months to 3 years, total effective sentence of 5 years and 6 months, non-parole period of 2 years and 9 months, stepfather of victim aged between 8 and 14); R v Taylor (2004) 8 VR 213 (three counts, sentences ranging from 3 months to 2 years and 6 months, total effective sentence of 3 years and 3 months, non-parole period of 2 years and 3 months, 12—13-year-old victim was daughter of 48-year-old offender’s family friend); R v Pignataro [2003] VSCA 54 (2 years, 16 months suspended for 2 years, offender a family friend of 15-year-old victim, no prior convictions other than for a speeding offence).
It was for these reasons that we dismissed EJA’s appeal.
---
TABLE OF CASES
| CASE NAME ABBREVIATION | FULL TITLE | CITATION |
| Alcan | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue | (2009) 239 CLR 27 |
| Attorney-General’s Reference | Attorney-General’s Reference (Nos 74 and 83 of 2007) (Latham LJ, Burnton and Pitchford JJ) | [2008] 1 Cr App R (S) 110 |
| CIC Insurance | CIC Insurance v Bankstown Football Club Ltd | (1997) 187 CLR 384 |
| Candetti | Candetti Constructions Pty Ltd v Fonteyn | (2010) 108 SASR 429 |
| Dagwell | R v Dagwell (Howie J, with whom Beazley JA and Adams J agreed) | [2006] NSWCCA 98 |
| Deering | Deering v Western Australia (Wheeler JA, with whom Owen and Miller JJA agreed) | [2007] WASCA 212 |
| Dempsey | Dempsey v The Queen (Kennedy J, with whom Wallwork and Murray JJ agreed) | Unreported, WASCA, 9 February 1996 |
| Edwards | Edwards v The Queen (Burchett AUJ, with whom Malcolm CJ and Wheeler J agreed) | [2001] WASCA 263 |
| FAJ | FAJ v The Queen | [2011] VSCA 137 |
| G | R v G (Lord Hoffmann, Lord Hope, Baroness Hale, Lord Carswell and Lord Mance) | [2009] 1 AC 92 |
| GP | R v GP (Malcolm CJ, Murray and Steytler JJ) | Unreported, WASCA 22 May 1997 |
| Galea | Galea v Galea | (1990) 19 NSWLR 263 |
| Henry | R v Henry | (1999) 46 NSWLR 346 |
| Hess | Hess v The Queen (Lamer CJC, Wilson, La Forest, L’Heureux‑Dubé, Sopinka, Gronthier, McLaughlin JJ) | [1990] 2 SCR 906 |
| Hitanaya | R v Hitanaya (Martin CJ, Riley and Southwood JJ) | [2010] NTCCA 3 |
| Humphries | Humphries v The Queen | [2010] VSCA 161 |
| Jongsma | R v Jongsma (Batt and Eames JJA, Gillard AJA) | (2004) 150 A Crim R 386 |
| Karazisis | Director of Public Prosecutions v Karazisis | [2010] VSCA 350 |
| LCC | R v LCC (Charles JA, with whom Warren CJ and Chernov JA agreed) | [2006] VSCA 33 |
| Livesey | Livesey v The New South Wales Bar Association | (1983) 151 CLR 288 |
| Magner | R v Magner (Gillard AJA, with whom Batt and Eames JJA agreed) | [2004] VSCA 202 |
| MAN | R v MAN (McMurdo P, Keane JA and Atkinson J) | [2005] QCA 413 |
| Marris | Marris v The Queen (Wheeler J, with whom Murray and Templeman JJ agreed) | [2003] WASCA 171 |
| McClymont | R v McClymont (Mahony JA, with whom Gleeson CJ and McInerney J agreed) | Unreported, NSWCCA, 17 December 1992 |
| Merrett | R v Merrett | (2007) 14 VR 392 |
| Millar | R v Millar (Kennedy, Pidgeon and Murray JJ) | [2001] WASCA 54 |
| Nguyen | R v Nguyen (Chernov JA, with whom Callaway and Buchanan JJA agreed) | (2001) 124 A Crim R 477 |
| Nikodjevic | R v Nikodjevic | [2004] VSCA 222 |
| O’Neill | R v O’Neill | [2003] VSCA 26 |
| Orton | R v Orton | (1922) VLR 469 |
| PDA | PDA v The Queen | [2010] VSCA 94 |
| Poulton | Poulton v Western Australia (McClure, Miller JJA; Steytler P agreed) | (2008) 37 WAR 211 |
| Re Bolton | Re Bolton; Ex parte Beane | (1987) 162 CLR 514 |
| Riggall | Riggall v Western Australia (Wheeler JA, with whom Buss and Miller JJA agreed) | (2008) 37 WAR 211 |
| Simon | Simon v Western Australia (Steytler P, with whom McClure and Miller JJA agreed) | [2009] WASCA 10 |
| Singh | Singh v Commonwealth | (2004) 222 CLR 322 |
| SJH | Western Australia v SJH (Whelan JA with whom Owen JA agreed and Russ JA disagreed) | [2010] WASCA 40 |
| Storey | R v Storey | [1998] 1 VR 359 |
| Sulemanov | R v Sulemanov (Vincent JA, with whom Redlich and Kellam JJA agreed) | [2007] VSCA 288 |
| Temby | R v Temby (Debelle J, with whom Gray and Sulan JJ agreed) | [2003] SASC 230 |
| Verdins | R v Verdins | (2007) 16 VR 269 |
| Watson | Watson; Ex parte Armstrong | (1976) 136 CLR 248 |
| Williams | R v Williams (King CJ, Millhouse and Olsson JJ) | (1990) 53 SASR 253 |
| Woods | R v Woods (Giles JA, with whom Latham J and Matthews AJ agreed) | (2009) 195 A Crim R 173 |
| ABBREVIATION | FULL TITLE OF INTERMEDIATE APPELLATE COURT |
| FCSASC | Full Court of the South Australian Supreme Court |
| NSWCCA | New South Wales Court of Criminal Appeal |
| NTCCA | Court of Criminal Appeal of the Northern Territory |
| QCA | Supreme Court of Queensland (Court of Appeal) |
| WASCA | Supreme Court of Western Australia (Court of Criminal Appeal, later Court of Appeal) |
703
7
0